Twentieth century totalitarian regimes, lustration, and guilt for crimes of the past: challenges and dangers for the Strasbourg Court

This article addresses a key contemporary problem confronting the Strasbourg Court. While it is well established that seeking the historical truth is an integral part of the right to freedom of expression, it cannot be the role of the Strasbourg Court to arbitrate underlying historical issues (Dzhugashvili v. Russia, 2014). Still less can it be for the Court to decide on individual or collective guilt for crimes of the past, rather than on violations of Convention rights. For example, the Court has found many violations of human rights in the more recent armed conflicts in Northern Ireland, South-East Turkey, Chechnya, or the Basque Country, but has never sought to pronounce on the legal or moral issues underlying these conflicts, or on their deep historical roots. However, the existence of the USSR for more than 70 years, and 12 years of Nazism in Germany, leading to WWII, dominated the 20th century in Europe. These have both been described as totalitarian regimes. The fall of the Berlin Wall in 1989 followed by the collapse of the USSR in 1991 led to dramatic changes not only in statehood and political systems, but also a strong desire for states emerging from the USSR or Soviet domination to purge the past, and to identify and punish wrongdoers. Various forms of lustration have been a product of this desire, with the exception of the Russian Federation, where the characterization and proper evaluation of its Soviet past are questions still unresolved. Increasingly the Strasbourg Court has been called on to decide highly controversial cases, for example Zdanoka v. Latvia (2006), Vajnai v. Hungary (2008), Kononov v. Latvia (2010), Korobov v. Estonia (2013), Soro v. Estonia (2015). The author was counsel for the applicants in some of these cases. I ask: what are the dangers and challenges for the Strasbourg Court in adjudicating such cases, and how can it avoid the appearance of taking sides in bitter and intractable arguments